Best Practices Committee

December 17-18, 2008

Board for Judicial Administration
Best Practices Committee

Telephone Conferences
December 17 and 18, 2008
Meeting Minutes

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December 17 Meeting

Welcome and Call to Order

Ms. Appel called the meeting to order.  She relayed Judge Spector’s regrets at being unable to participate in today’s meeting.  Introductions of participants were made.

Ms. Appel noted that the following tests of each of the three access measures were conducted:  (1) an informal review at Tacoma Municipal Court, (2) a formal test at Cowlitz Superior Court, and (3) a formal test at Thurston District Court.  The Cowlitz Superior Court and Thurston District Court reports are presented under tab 5 of the meeting materials.  The tests all went smoothly.  The participating courts found the standards appropriate, the questions to determine if the standards are being met are reasonable, and the documentation required under each standard is reasonable.  The measures, which were approved by this Committee prior to testing, have been modified slightly as a result of the tests and of subsequent Committee review.

The purpose of today’s and tomorrow’s meetings is to review the measures based on the Generally Accepted Government Auditing Standards (GAGAS) and the BJA criteria (both presented at tab 6) to determine whether to recommend to the BJA that the measures be adopted.

Measure 12:  Access for the Self-Represented and/or Financially Disadvantaged
Measure 12 materials (Tab 1 of the meeting packet) were reviewed.  Ms. Appel summarized the staff assessment based on the measure test results, with emphasis on the degree to which the measures meet the GAGAS and BJA criteria. 

Discussion:  
It was noted that a new court rule regarding appointment of a lawyer has been adopted.  Staff will review the rule(s) for possible reference in the Committee report.  (See attached copy of suggested rule change to CrR 3.1(d), currently published for comment.  It is possible that a standard related to subsection (4) could be added to Measure 12 at a later date if the rule is adopted.)

It was noted that the audit need not be restricted to discussions solely with the presiding judge and the administrator.  Ms. Appel will add notes that discussion with specialists (such as an indigency screener) is particularly desirable.  It was also noted that counter staff are a good source of evaluative information, such as the degree to which they’re aware of policies and procedures.  (The Methodology section on the first page of the measure, and the instructions in blue to the auditor have been updated to reflect the Committee’s recommendation that the measure be administered to court and counter staff before the interviews with the Presiding Judge and the Court Administrator.)

It was suggested that feedback also be sought from pro se defendants.  A number of tactical issues were discussed, including:  restriction to cases where a constitutional right applies; unreliability of pro se connection codes for identifying self-represented litigants; possibility of reviewing tapes to assess thoroughness of the colloquy between judge and defendant; courtroom observation; postal-address and cost constraints in attempting to survey defendants; and concerns about objectivity of convicted defendants.  It was noted that very few criminal defendants choose to represent themselves, and the value of their direct input may not merit the difficulty and expense of attaining it.  An alternative suggestion was to require individual courts to have procedures in place for getting input from pro se litigants.  The auditor would then be checking for the existence of the procedure, rather than for the results.  The topic was tabled for further consideration and review with the Chair.

Measure 15:  Access for Court Users with Disabilities

Measure 15 materials (Tab 2 of the meeting packet) were reviewed.  Ms. Appel summarized the staff assessment based on the measure test results with emphasis on the degree to which the measures meet the GAGAS and BJA criteria. 

Discussion:
In respect to criterion #5 (Are the standards reasonable and justifiable?), it was noted that interpretations of appropriate accommodation under the ADA and WLAD differ across courts and are in flux.  For example, appropriateness of probing a court user regarding the need for accommodation is debated, given countervailing privacy concerns.  Can the Committee establish standards in the face of this flux?  It was agreed, however, that an issue such as the one cited arises in face-to-face contact, and does not arise in the audit.  In addition, audit guidelines call for publication of the audit manual two years before any court could be held accountable.  During that time, model policies and procedures will be developed. 

It was again noted that the audit need not be restricted to discussions solely with the presiding judge and the administrator.  (The Methodology section on the first page of the measure, and the instructions in blue to the auditor have been updated to reflect the Committee’s recommendation that the measure be administered to court and counter staff before the interviews with the Presiding Judge and the Court Administrator.)

The meeting adjourned, with a reminder that discussion will resume in tomorrow’s telephone conference.

December 18 Meeting

Welcome and Call to Order

Judge Spector called the meeting to order.  Introductions of participants were made.

Measure 12:  Access for the Self-Represented and/or Financially Disadvantaged

Judge Spector indicated that she and Julia reviewed yesterday’s Committee meeting.  The discussion regarding audit input directly from pro se litigants highlighted for the Chair the need to revisit the purpose of these audits.  Through a long series of deliberation and action since the inception of this Committee, the purpose of the audits has been clearly defined as process verification – not quality assurance.  That focus has a tendency to get lost with evolving membership, and so bears re-emphasis.   It is understandable that newer members may not initially be oriented to the verification goal, especially if they come from counties which conduct performance audits focused on quality assurance. 

Defendant surveys do not speak in any meaningful way to process verification.  Defendant objectivity is highly questionable.  Because county clerks cannot give legal advice, defendants predictably report that they were not sufficiently assisted. 

By way of reintroducing all members to the goal of process verification, Judge Spector noted that the Committee is somewhat misnamed.  Under direction established six-to-seven years ago by this committee under then-Chair Judge Sperline’s leadership (and as laid out in BJA rules), audits will not aim to measure courts’ achievement of best practices (the “gold standard”), but rather will establish baseline process requirements that all courts must achieve.  The emphasis is on determining whether required services are provided (i.e., Does the court meet the baseline requirement?) – but not an evaluation of the quality of those services.  Quality would lead to comparative performance evaluations, which have been clearly defined outside the goals of this effort.  

Committee members concurred with the staff assessment of Measure 12, and it was approved for recommendation to the BJA.

Measure 15:  Access for Court Users with Disabilities

Ms. Appel continued summarizing the staff assessment provided under tab 2 of the meeting materials. 

Discussion:
Ms. Appel noted that AOC now has an ADA Coordinator (Carol Maher) on staff to serve as a resource for courts, and it may be possible for model policies and procedures to be developed.  Ms. Maher has reviewed this measure and participated in the Cowlitz test.  Her view is that this measure does a good job of auditing the courts’ provision of access for the disabled.

Ms. Pettus noted that the ADA and WLAD may require the keeping of records.  If so, those may assist the conduct of the audit.  She will look into whether that requirement exists.  Courts must have written policies (as required by law).  Therefore, the audit’s focus will be on that policy, so the direct observation alluded to in the evaluation document (criteria #9:  “ . . . direct observation may be required to objectively verify the court’s responses”) is not relevant.  That sentence will be deleted.  The focus, instead, will be on the established protocol and the training of staff in that protocol.

Judge Spector asked Mr. Ponzoha how adaptable this measure is for the Court of Appeals.  Mr. Ponzoha concurred that it generally applies, with some deletions (related to an individual judge’s courtroom).

Committee members concurred with the staff assessment of Measure 15, and it was approved for recommendation to the BJA.

Measure 16:  Access for Court Users with Limited English Proficiency

Measure 16 materials (Tab 3 of the meeting packet) were reviewed.  Ms. Appel summarized the staff assessment based on the measure test results with emphasis on the degree to which the measures meet the GAGAS and BJA criteria. 

Discussion:
BPC staff have coordinated with AOC staff assisting courts with their Language Assistance Plans (LAP) to ensure we are not working at cross purposes nor duplicating efforts.  The Interpreter Commission will be looking at the content of the LAP, which is not the focus of this audit measure.

It was noted the legislation passed in 2008, so audit question #5 (“When was the language assistance plan last updated?”) will not apply until 2013.

The audit went well in both Cowlitz Superior and Thurston District Courts.  Ms. Appel noted that there is vast difference across counties in respect to language needs.   Cowlitz County has been innovative in translating forms.  Those in the landlord-tenant subject area, however, have been problematic. 

Committee members concurred with the staff assessment of Measure 16, and it was approved for recommendation to the BJA.

Next Steps

The three measures reviewed in today’s and yesterday’s meetings are now ready to go to the BJA.  Work on additional measures will be on hold through legislative session and will pick up again in the late spring. 

Jury administration has been discussed as the next measure on which to focus when the Committee resumes.  The jury measure could be constrained by limitations of local jury-management information systems.  Yield data collection may not be feasible.  In addition, juries are administered in some counties by the County Clerk, whose office we are not auditing.  In determining the required common denominator, the audit measure will look at statutory requirements – not at CourTools, which exceed currently available data.  Ms. Appel will send some related issues to members for consideration. 

The meeting adjourned.